B-173711, AUG 19, 1971

B-173711: Aug 19, 1971

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IT IS GAO'S OPINION THAT JUSTICE DOUGLAS' ORDER OF JULY 18. SINCE NO DEFINITE TIME LIMIT IS SET IN THE ORDER. : WE HAVE YOUR MESSAGE 082356Z. IS ENTITLED TO CONTINUE TO BE PAID PAY AND ALLOWANCES PENDING JUDICIAL CONSIDERATION OF HER CASE UNDER THE CIRCUMSTANCES DISCLOSED. YOUR REQUEST WAS FORWARDED HERE BY FIRST ENDORSEMENT DATED JULY 23. UNDER SECTION 6401 A WOMAN OFFICER ON THE ACTIVE LIST OF THE NAVY WHO HOLDS A PERMANENT APPOINTMENT IN THE GRADE OF LIEUTENANT IS REQUIRED TO BE HONORABLY DISCHARGED ON JUNE 30 OF THE FISCAL YEAR IN WHICH SHE IS NOT ON THE PROMOTION LIST AND SHE HAS COMPLETED 13 YEARS OF ACTIVE COMMISSIONED SERVICE IN THE NAVY. IT IS REPORTED THAT THE FACTS IN LIEUTENANT TWO'S CASE BRING HER WITHIN THE PURVIEW OF SECTION 6401.

B-173711, AUG 19, 1971

MILITARY PERSONNEL - PAY AND ALLOWANCES - JUDICIAL DETERMINATION OF DISCHARGE ADVANCE DECISION AUTHORIZING CONTINUED PAYMENT TO LIEUTENANT DOREEN JEAN TWO OF BASIC PAY AND ALLOWANCES PENDING JUDICIAL DETERMINATION OF HER REQUEST FOR RELIEF FROM HER ORDERED DISCHARGE UNDER THE PROVISIONS OF 10 U.S.C. 6401. IT IS GAO'S OPINION THAT JUSTICE DOUGLAS' ORDER OF JULY 18, 1971, STAYING AND ENJOINING THE NAVY FROM DISCHARGING LIEUTENANT TWO, AND DIRECTING THE NAVY TO RETAIN HER IN THE SERVICE WITH FULL PAY AND BENEFITS PENDING A TRIAL ON THE MERITS OF HER COMPLAINT, MUST BE COMPLIED WITH. SINCE NO DEFINITE TIME LIMIT IS SET IN THE ORDER, AND SINCE PAYMENT UNDER IT ON AND AFTER JULY 1, 1971, SEEMS CONTRARY TO THE REQUIREMENTS OF 10 U.S.C. 6401, EVERY EFFORT SHOULD BE MADE TO BRING ABOUT AN EARLY TRIAL.

TO LIEUTENANT (JG) DAVID K. GWINN,:

WE HAVE YOUR MESSAGE 082356Z, JULY 1971, REQUESTING AN ADVANCE DECISION AS TO WHETHER LIEUTENANT DOREEN JEAN TWO, USN, IS ENTITLED TO CONTINUE TO BE PAID PAY AND ALLOWANCES PENDING JUDICIAL CONSIDERATION OF HER CASE UNDER THE CIRCUMSTANCES DISCLOSED. YOUR REQUEST WAS FORWARDED HERE BY FIRST ENDORSEMENT DATED JULY 23, 1971, BY THE DIRECTOR, NAVY MILITARY PAY SYSTEM, AND HAS BEEN ASSIGNED SUBMISSION NO. DO-N-1130 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BUREAU OF NAVAL PERSONNEL ORDER 117900 DATED MARCH 11, 1971, DIRECTED THAT LIEUTENANT TWO BE HONORABLY DISCHARGED FROM THE NAVY NOT LATER THAN JUNE 30, 1971, PURSUANT TO 10 U.S.C. 6401. UNDER SECTION 6401 A WOMAN OFFICER ON THE ACTIVE LIST OF THE NAVY WHO HOLDS A PERMANENT APPOINTMENT IN THE GRADE OF LIEUTENANT IS REQUIRED TO BE HONORABLY DISCHARGED ON JUNE 30 OF THE FISCAL YEAR IN WHICH SHE IS NOT ON THE PROMOTION LIST AND SHE HAS COMPLETED 13 YEARS OF ACTIVE COMMISSIONED SERVICE IN THE NAVY. IT IS REPORTED THAT THE FACTS IN LIEUTENANT TWO'S CASE BRING HER WITHIN THE PURVIEW OF SECTION 6401.

THE RECORD INDICATES THAT ON JUNE 14, 1971, LIEUTENANT TWO, IN THE CASE OF LIEUTENANT DOREEN JEAN TWO, USN, V THE UNITED STATES OF AMERICA, ET AL, CIVIL NO. 9752, FILED A COMPLAINT IN THE UNITED STATES COURT FOR THE WESTERN DISTRICT OF WASHINGTON, NORTHERN DIVISION, PETITIONING THE COURT FOR A PRELIMINARY INJUNCTION AND FOR A TEMPORARY RESTRAINING ORDER TO THE EFFECT THAT SHE NOT BE DISCHARGED FROM THE NAVY ON JUNE 30, 1971, AND THAT SHE REMAIN ON ACTIVE DUTY UNTIL SUCH TIME AS A FULL AND COMPLETE HEARING CAN BE GRANTED HER IN THE FEDERAL COURT. THE PLAINTIFF ALLEGES, AMONG OTHER THINGS, THAT THE FAILURE TO ADVANCE HER TO LIEUTENANT COMMANDER RESULTED IN PART FROM ACTS OF DISCRIMINATION DUE TO HER SEX, IN VIOLATION OF THE CIVIL RIGHTS ACT. THE PLAINTIFF ASKS THE COURT TO DECLARE UNCONSTITUTIONAL AND VOID SECTIONS 6382 AND 6401 OF TITLE 10, U.S. CODE, AND THAT THE ACTIONS OF THE NAVY IN PROCESSING HER FOR DISCHARGE BE HELD TO BE IN VIOLATION OF HER CIVIL RIGHTS.

THE RECORD FURTHER INDICATES THAT THE DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON DENIED THE PLAINTIFF'S APPLICATION FOR A TEMPORARY INJUNCTION BUT GRANTED A 5-DAY STAY TO ALLOW HER TO PRESENT HER MOTION TO THE U.S. CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT IN SAN FRANCISCO. THE NINTH CIRCUIT COURT STAYED THE PLAINTIFF'S DISCHARGE UNTIL 12:00 NOON ON JULY 7, 1971. THAT COURT, HOWEVER, ON JULY 7, 1971, DENIED THE PLAINTIFF'S MOTION FOR AN INJUNCTION BUT STAYED HER DISCHARGE UNTIL 12:00 NOON ON JULY 22, 1971, TO ALLOW HER TIME TO APPLY TO THE UNITED STATES SUPREME COURT FOR THE INJUNCTIVE RELIEF REQUESTED.

SINCE RECEIPT OF YOUR SUBMISSION THERE HAS BEEN FORWARDED HERE A COPY OF AN ORDER DATED JULY 18, 1971, SIGNED BY WILLIAM O. DOUGLAS, ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT, GRANTING A TEMPORARY STAY AND PRELIMINARY INJUNCTION IN THE CASE OF LIEUTENANT DOREEN JEAN TWO, USN, APPELLANT, V UNITED STATES OF AMERICA, ET AL, APPELLEES. THE ORDER READS AS FOLLOWS:

"THE ABOVE-ENTITLED CAUSE HAVING COME ON FOR HEARING UPON THE APPLICATION OF THE APPELLANT FOR A TEMPORARY STAY OR TEMPORARY INJUNCTION PENDING TRIAL OF THE ACTION ON THE MERITS OF HER COMPLAINT, AND THE COURT HAVING CONSIDERED THE APPLICATION AND THE MATTERS SUBMITTED IN SUPPORT THEREOF, NOW THEREFORE,

"IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT THE ABOVE-NAMED APPELLEES, THE UNITED STATES OF AMERICA; JOHN CHAFEE, SECRETARY OF THE NAVY; ROBIN QUIGLEY, DIRECTOR OF WAVES; CHIEF OF NAVAL PERSONNEL; CAPTAIN A. W. SMITH, COMMANDING OFFICER, NAS WHIDBEY ISLAND, ARE HEREBY TEMPORARILY STAYED AND ENJOINED FROM DISCHARGING THE APPELLANT FROM THE UNITED STATES NAVY PENDING THE TRIAL OF THE MERITS OF HER COMPLAINT.

"THE ABOVE-NAMED APPELLEES ARE FURTHER ORDERED AND DIRECTED TO RETAIN APPELLANT WITH THE UNITED STATES NAVY WITH FULL PAY AND BENEFITS PENDING SAID TRIAL."

IT IS REPORTED THAT ON JULY 22, 1971, THE EXECUTIVE OFFICER, NAVAL AIR STATION, WHIDBEY ISLAND, WAS DIRECTED "TO RELIEVE LT TWO OF ALL OFFICIALLY ASSIGNED DUTIES AND TO PROVIDE HER WITH ADEQUATE OFFICE SPACE AND CLERICAL ASSISTANCE NECESSARY IN HER RETENTION EFFORTS."

IN OUR OPINION JUSTICE DOUGLAS' ORDER STAYING AND ENJOINING THE NAVY FROM DISCHARGING LIEUTENANT TWO, AND DIRECTING THE NAVY TO RETAIN HER IN THE SERVICE WITH FULL PAY AND BENEFITS PENDING THE TRIAL OF THE MERITS OF HER COMPLAINT, MUST BE COMPLIED WITH WHILE IT IS IN EFFECT. HOWEVER, NO DEFINITE TIME LIMIT IS SET IN SUCH ORDER AND SINCE PAYMENT OF PAY AND ALLOWANCES UNDER IT ON AND AFTER JULY 1, 1971, SEEMS CONTRARY TO THE REQUIREMENTS OF 10 U.S.C. 6401, IT IS OUR VIEW THAT EVERY EFFORT SHOULD BE MADE TO CAUSE AN EARLY TRIAL TO BE HAD ON THE MERITS OF LIEUTENANT TWO'S COMPLAINT.